It is often easier to explain something by saying what it is not, rather than what it is. It should be clear that this article intends neither to champion nor to condemn TTIP. But since the debate has been raging, we can only sadly observe that the arguments on both sides do not live up to the issue at stake. What it reveals about us—Europeans—is disquieting.

The first aspect of TTIP worthy of criticism is the approach that has been employed by the European Commission. Its lack of transparency and secrecy could only attract the anger of opponents and prevent a substantive debate from taking place. This allowed public certainty that the negotiation was evil to easily creep in and spread. If it is true that the EU has a full jurisdiction over trade negotiations as far as the interests of the Union are concerned, that should not imply the exclusion of the people. The pursuit of the EU’s interests should bring all Europeans together, not create divides between the people and the institutions that represent them.

Weak Criticisms

Concerning the cons of the agreement, thinking that such an agreement would devastate the EU’s economy looks like an admission of weakness or even an admission of failure, disparaging the competitiveness of the EU. The EU remains the strongest economic power and the most fully integrated market in the world. We have a chance to benefit from TTIP as well, for example in the field of public procurement. But no one really talks about that, since emotion can be far more easily aroused with chlorinated chicken and GMOs. More generally, the perception we have of the US reveals a sort of hypocrisy on our part. While we enjoy the positive economic effects of American growth, we widely still present the US as an aggressive capitalist monster acting out of thirst for money. We can no longer free-ride and be paranoid at the same time. This attitude is not fitting for an economic and political power such as the EU. Also, thinking that EU regulations will have to be lowered to align to the American standards is not reflective of reality. In the field of financial services, for example, the US has stronger regulations than does the EU. Moreover, free-trade does not require lowering standards for public health, environmental regulations, and consumer protection.

ISDS – What’s the problem exactly?

Let’s turn now to one of the most prominent critiques surrounding the agreement. The investor-state dispute settlement (ISDS) mechanism is not unique to TTIP. Many free-trade agreements contain an ISDS provision. In the TTIP case, opponents are unclear: Do they reject the principle of such a mechanism, or do they reject the manner in which it will be executed? This nuance is very important. Indeed, one could imagine excluding some economic sectors from the ISDS scope. This is for example what NAFTA did with financial services under its Chapter 11. If, however, opponents rather contest the ISDS on principle—the possibility for private companies to legally challenge states—they should remember that even national courts have allowed investors or companies to sue states because of the adoption of a law. For example, a 1934 French law had prohibited the manufacture and sale of any cream substitute not exclusively made out of milk. A company had specialized in the production of such a product before the act was passed. The Council of State—the highest administrative court—recognized that passing constituted an overreach of responsibility on the part of the state. We should also take note that expropriation and discrimination are also forbidden in the EU and that it would be hypocritical to renounce our home principles abroad.

All these details show how dogmatic and demagogic the TTIP debate is turning. If the opponents contest the privacy of this form of justice, they seem to forget that international arbitration allows the parties to chose their arbiter.

The advantages of TTIP are much less prominent in public debate. Because we hear pro-TTIP arguments less, it will be harder to criticize these views. But simply arguing that TTIP will create new job opportunities is not enough. Which guarantees and security can those pushing TTIP really provide to the European people?

Learning from the Americans

Finally, the tragedy of this debate is that we seem to have forgotten that it takes two to enter into a bilateral deal. We too seldom consider the opinion of the American people. Doing so would probably stop many of the stereotypes about both the US and TTIP. Americans are far from all being satisfied with TTIP, and Congress is extremely divided. American isolationism did not die with the Monroe Doctrine. But beyond that, there is also something we should learn from Americans. Their class actions system demonstrates that the opposition to companies’ unfair practices is more structured than in the EU. American consumers organize legal collective actions and defend their interests more efficiently than do their European counterparts. If a similar culture were developed within the European Union, European consumers would probably feel the strength of the fantastic democratic countervailing power they can and should be vested in, and TTIP opponents would maybe be more reasonable.

We need the US as much as the US needs us. Many worldwide issues cannot be seriously addressed without a transatlantic cooperative framework. This is the case with regulatory arbitrage or shadow banking, which harm the both US and the EU economies. TTIP should be the first of a new Free-Trade Agreement generation, designed to conciliate both regulation and liberalization. The classical opposition between the preservation of high protection standards and absolute free-trade can be resolved through deeper transatlantic institutionalization, discussion, mutual recognition and prevention. When Europeans stop fearing everything at all time, that will be possible. But for now what is certain is that both Europeans and Americans deserve a better debate than a simplistic “for or against free trade?”.

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Author

Jocelyn Lequesne is persuing a double-degree in European economic law and regulation at the Institut d’études politiques of Strasbourg, France and “European and International Business, Competition, and Regulatory Law” at the Freie Universität Berlin. After an exchange program at Syracuse University in the United States, he mainly chose to focus on legal and economic issues concerning EU-US relations.